Kent v. Farm Bureau Mutual Insurance

906 P.2d 146, 127 Idaho 776, 1995 Ida. App. LEXIS 136
CourtIdaho Court of Appeals
DecidedNovember 17, 1995
DocketNo. 21839
StatusPublished
Cited by1 cases

This text of 906 P.2d 146 (Kent v. Farm Bureau Mutual Insurance) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kent v. Farm Bureau Mutual Insurance, 906 P.2d 146, 127 Idaho 776, 1995 Ida. App. LEXIS 136 (Idaho Ct. App. 1995).

Opinion

PERRY, Judge.

Roy and Julia Kent sold a house to Barry and Betty Bassett, subject to a deed of trust in favor of the Kents. The Bassetts insured the house with Farm Bureau Mutual Insurance Company and, as required by the deed of trust, listed the Kents as lienholders on the insurance policy. The Bassetts defaulted on the deed of trust and moved from the house. The Kents foreclosed and obtained title to the house in November of 1992. No one moved into the dwelling, however.

Thereafter the pipes and fixtures ruptured due to the cold weather. The Kents made a claim for insurance benefits. That claim was denied by Farm Bureau because the house was vacant and not heated at the time the pipes froze. As a result of the denial of the claim, the Kents restored heat to the premises and contracted with Custom Heating to periodically inspect the house to make sure there were no further incidents of freezing. The Kents paid for the repairs and are not contesting Farm Bureau’s denial of this first claim.

In February of 1993, Roy Kent contacted Farm Bureau and discussed the insurance policy. At that time an underwriter told Roy that the insurance coverage would continue until March of that year, but that the company would not renew the policy. After this conversation, but before the coverage terminated, a pipe ruptured due to the cold weather. The Kents filed a claim for damage to the house caused by water from the broken pipe. Farm Bureau refused to pay the claim and the Kents filed suit. Farm Bureau moved for summary judgment. The district court granted Farm Bureau’s motion based on its finding that no genuine issue of material fact existed. The Kents appeal. We affirm in part, vacate in part, and remand for further proceedings.

I.

ANALYSIS

Summary judgment is proper only when the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Moss v. Mid-American Fire and Marine Insurance Co., 103 Idaho 298, 302, 647 P.2d 754, 758 (1982). When assessing a motion for summary judgment, all controverted facts are to be liberally construed in favor of the nonmoving party. Furthermore, the trial court must draw all reasonable inferences in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint School Dist., 125 Idaho 872, 876 P.2d 154 (Ct.App.1994). On appeal from an order granting summary judgment, this Court’s standard of review is the same as the standard used by [778]*778the trial court in ruling on motions for summary judgment. Ryan v. Beisner, 123 Idaho 42, 44, 844 P.2d 24, 26 (Ct.App.1992).

In this ease, the parties’ dispute turns upon the interpretation of the printed insurance policy. The district court did not find the policy to be ambiguous. Therefore, we must examine the policy provisions to determine if Farm Bureau was entitled to judgment as a matter of law. Insurance policies are a matter of contract between the insurer and the insured. Brinkman v. Aid Insurance Co., 115 Idaho 346, 352, 766 P.2d 1227, 1233 (1988). In the absence of ambiguity, an insurance policy must be construed as any other contract and understood in its plain, ordinary and proper sense, according to the meaning derived from the plain wording of the contract. Juker v. American Livestock Insurance Co., 102 Idaho 644, 645, 637 P.2d 792, 793 (1981); Bonner County v. Panhandle Rodeo Ass’n, Inc., 101 Idaho 772, 776, 620 P.2d 1102, 1106 (1980).

The Kents contend that their loss was covered by any one of four applicable provisions in the insurance policy and that the district court’s order granting summary judgment was, therefore, error. Farm Bureau conceded at oral argument that if any of the four provisions of the policy provided coverage that summary judgment would have been improper. We therefore will look at each provision to determine its applicability.

First, the Kents allege that the twenty-fifth paragraph of the perils section covers the damage incurred after the pipe ruptured. Paragraph twenty-five is an all-risk provision of the policy, which covers many of the same perils as other portions of the policy, but contains fewer exceptions and limitations. This provision, if it is included within the Kents’ insurance contract, may in fact cover the damage incurred by the Kents as a result of the freezing pipe. However, the “general conditions” section at the beginning of the insurance policy clearly states that the insurance is limited to the coverages listed on the declarations page. The declarations page of the insurance policy purchased by the Bas-setts indicates that they purchased only the coverage listed in paragraphs one through eighteen. The Kents have no claim to coverage under a provision that the Bassetts did not purchase and for which Farm Bureau has never been paid. The district court properly granted summary judgment to Farm Bureau with respect to the Kents’ claim for benefits under paragraph twenty-five of the policy.

The Kents next contend that they were insured by Farm Bureau because the policy contained endorsement 372, which provides special rights to mortgagees. However, the Kents’ argument regarding the endorsement was not raised before the district court. Issues not raised below may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Further, the text of endorsement 372, itself, was not provided to the trial court. In an appeal from an order granting summary judgment, we review the pleadings, depositions, admissions and affidavits on file before the trial court. Barab v. Plumleigh, 123 Idaho 890, 892, 853 P.2d 635, 637 (Ct.App.1993). There is no genuine issue of material fact regarding coverage under endorsement 372 based on the record below, and we need not address it further.

Third, the Kents claim that paragraph fourteen of the policy provides coverage for the damage to the house. The introduction to the “perils insured” section and paragraph fourteen of that section, when read together, provide:

We cover for direct physical loss to property insured caused by the following perils:
14. Accidental discharge or overflow of water or steam from within a plumbing, heating or air conditioning system or from within a household appliance. We also pay for tearing out and replacing any part of the covered dwelling necessary to repair the system or appliance from which the water or steam escaped.
This peril does not include loss:
a.

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Bluebook (online)
906 P.2d 146, 127 Idaho 776, 1995 Ida. App. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kent-v-farm-bureau-mutual-insurance-idahoctapp-1995.